PITTSBURGH – A Pittsburgh nonprofit denies that it passed over giving a Creative Arts Manager position to an older, African-American employee for reasons of age and race, in favor of a younger, white employee.
Rev. Spencer Simon Jr. of Penn Hills first filed suit in the Allegheny County Court of Common Pleas on Sept. 10 versus ACHIEVA Support, of Pittsburgh.
Simon, an African-American male over the age of 70, said he began working for ACHIEVA Support as a part-time van driver in November 2012. The plaintiffs adds that his educational and employment history included significant experience and skills in arts, photography, community service and ministry.
In fall 2015, he spoke with the defendant’s CEO, Marsha Blanco, about his desire to expand his duties and showcase ACHIEVA Support to the community. In June 2016, a Creative Arts Manager position was created at ACHIEVA Support, for which the plaintiff was qualified, however, the plaintiff said it was not openly advertised on the company website.
“On June 24, 2016, plaintiff applied for the Creative Arts Manager position and received confirmation that his application was provided to human resources. Although plaintiff was qualified for the position, he was never interviewed. On July 6, 2016, plaintiff was contacted by human resources and informed that the job was being given to someone else,” the suit stated.
“On that same day, plaintiff spoke with Caroline Olds, who works within defendant’s human resources department. Ms. Olds informed plaintiff that defendant had chosen to do nothing with Mr. Simon’s application. Thereafter, Mr. Simon learned that the job was given to a while male in his 20s or 30s. Plaintiff, despite being qualified, was neither interviewed nor hired because of his age and/or race.”
Simon argued the company knew he would be interested in the position and took steps to prevent him from learning of its availability. After that, Simon stated he was constructively discharged from his employment with ACHIEVA Support just four months later, on Nov. 25, 2016.
UPDATE
ACHIEVA Support, through its counsel, filed preliminary objections in the matter on Oct. 8.
“The Pennsylvania Human Relations Act requires individuals to file a complaint with the Pennsylvania Human Relations Commission, setting forth the particulars of an alleged unlawful discriminatory practice before they are permitted to file a complaint with the Court of Common Pleas. Plaintiff’s civil complaint includes allegations of alleged unlawful discriminatory practices that were not presented to the PHRC,” the objections read, in part.
“Specifically, the civil complaint includes allegations of disability discrimination, constructive discharge and retaliation [for] opposing race discrimination, none of which were presented to the PHRC as required by law before his filing of such claims in the Court of Common Pleas. Plaintiff’s failure to exhaust statutory remedies as to any claims of disability discrimination, constructive discharge and retaliation violate the Pennsylvania Rules of Civil Procedure and, accordingly, those claims warrant dismissal.”
Defense counsel also explained that the PHRA does not provide for punitive damages or a jury trial, and requested those counts be dismissed from the plaintiff’s case.
For counts of violating the PHRA and age discrimination, the plaintiff is seeking damages in excess of $35,000, exclusive of interest, costs and other damages as listed:
• Entry of declaratory judgment finding that the acts complained of herein are unlawful and violate the Pennsylvania
• Entry of a permanent injunction prohibiting defendants from retaliating against employees on the basis of race;
• Immediate assignment of plaintiff to such position that he would be occupying were it not for the discriminatory acts of defendant as well as the foreclosure of promotional opportunities;
• Compensation of plaintiff for all earnings and other benefits, including retirement benefits, which plaintiff would have received were it not for the discriminatory acts of defendant as well as the foreclosure of promotional opportunities;
• Pre-judgment interest on any back pay;
• Compensatory damages;
• Punitive damages;
• Costs and disbursements of this action, including reasonable attorney’s fees and expert fees, plus a trial by jury.
The plaintiff is represented by David M. Kobylinski and Peter T. Kobylinski of Praetorian Law Group, in Pittsburgh.
The defendant is represented by Marie Rivera-Johnson and Lindsay M. Buchanan of Dentons Cohen & Grigsby, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-009613
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com